Citation Nr: 0330660
Decision Date: 11/06/03 Archive Date: 11/17/03
DOCKET NO. 02-12 974 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUES
1. Entitlement to an increased evaluation for a bilateral
hearing loss disability, with a history of a perforation of
the left tympanic membrane, currently rated as 0 percent
disabling.
2. Entitlement to service connection for low back pain and
weakness.
3. Entitlement to service connection for a cervical spine
disorder.
4. Entitlement to service connection for a headache
disability.
5. Entitlement to service connection for tinnitus.
ATTORNEY FOR THE BOARD
M. Taylor, Associate Counsel
INTRODUCTION
The veteran had active service from November 1967 to August
1969. His awards and decorations include a Purple Heart
Medal and a Combat Infantryman Badge.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an October 2001 rating decision of the Salt
Lake City, Utah, Department of Veterans Affairs (VA)
Regional Office (RO).
REMAND
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The new
law includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.
The amendments became effective November 9, 2000, except for
the amendment to 38 C.F.R. § 3.156(b) which became effective
August 29, 2001. Except for the amendment to 38 C.F.R. §
3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and
38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions
of this rule merely implement the VCAA and do not provide
any rights other than those provided in the VCAA." 66 Fed.
Reg. 45,629. Accordingly, in general where the record
demonstrates that the statutory mandates have been
satisfied, the regulatory provisions likewise are satisfied.
The Act and implementing regulations eliminate the concept
of a well-grounded claim, redefine the obligations of VA
with respect to the duty to assist, and supersede the
decision of the United States Court of Appeals for Veterans
Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn
sub nom. Morton v. Gober, 14 Vet. App. 174 (per curiam
order) (holding that VA cannot assist in the development of
a claim that is not well grounded).
Service medical records reflect that the veteran worked on a
mortar crew during service. Treatment records, dated in
September 1968, note that he sustained injuries following a
land mine explosion, to include decreased hearing, neck
stiffness, and a perforated left tympanic membrane. The
impression was post concussive syndrome with headache. The
veteran maintains that he has a headache disability, a low
back disorder, and tinnitus as a result of the in-service
injuries.
Private treatment records, dated in March 1979, note that
the veteran had injured his back at home. The diagnosis was
herniated nucleus pulposus L4-5 on the right. Magnetic
resonance imaging (MRI) in June 1998 showed an impression of
large central and slightly right-sided disc protrusion, C6-
7, with moderate to severe spinal stenosis.
In addition, the results of a December 2000 private
audiometric test have not been interpreted. The Board notes
that on VA audiological evaluation in August 2001, the
examiner noted ringing and distortion in the right ear.
There is insufficient evidence to determine whether any
headache, tinnitus, low back disorder, or cervical spine
disorder is related to service, or to determine the current
severity of the veteran's service-connected hearing loss
disability. 38 C.F.R. § 3.326.
To ensure that VA has met its duty to assist the veteran in
developing the facts pertinent to the claims and to ensure
full compliance with due process requirements, these issues
are REMANDED to the RO for the following development:
1. The RO should schedule the veteran
for an audiological examination to
determine the severity of the veteran's
bilateral hearing loss disability and to
determine whether the veteran has
tinnitus. The examiner should be
requested to provide an opinion as to
whether the veteran has tinnitus and if
so, whether such is related to service.
The examiner should review the claims
file. A complete rationale should
accompany any opinion provided.
2. The RO should schedule the veteran
for an examination(s) to determine the
nature and etiology of any low back or
cervical spine disorder, as well as any
headache disability. The examiner
should be requested to respond to the
following: 1) Identify any current low
back and cervical spine disorders; 2) Is
it at least as likely as not that any
low back or cervical spine disorder
identified is related to service; 3)
Does the veteran have a headache
disability; 4) If so, is it at least as
likely as not that a headache disability
is related to service. The examiner
should review the claims file. A
complete rationale should accompany any
opinion provided.
If upon completion of the above action the claim remains
denied, the case should be returned to the Board after
compliance with appellate procedures. The veteran has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of
1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.43
and 38.02.
______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).